photo by: Journal-World File Photo

The Douglas County Judicial and Law Enforcement Center is pictured in this file photo from Aug. 4, 2020.

A judge has declined to stop Douglas County from enforcing a health order against Paradise Saloon, an adult entertainment club in Lawrence, while a civil case is pending.

Since the case was filed in Douglas County District Court in early October, attorney Robert “Tuck” Duncan has raised several arguments against local health restrictions put in place to mitigate the spread of the coronavirus. Though the specifics of the health order have fluctuated as local COVID-19 cases have risen and fallen, it has at times restricted the hours that bars can operate, including curbside or takeout food service.

Among things Duncan has argued are that Paradise Saloon is a private club, rather than a bar open to the general public; that the health order was an overreach by a non-elected official, Dr. Thomas Marcellino, Douglas County’s health officer; that the order did not provide due process to business owners; and, most recently, that a United States Supreme Court opinion striking down attendance limits at religious services should apply to the local health order.

The case sought a temporary injunction, which would have stopped enforcement of the health order at the club while the civil case is pending. The case also seeks a permanent injunction, and Judge Kay Huff wrote that the plaintiff may conduct further discovery and request another hearing before the court.

But in a recent memorandum decision declining to grant the temporary injunction, Huff wrote that any infringement on constitutional rights was not arbitrary, but was a reasonable response to the public health emergency of COVID-19.

Her written decision noted that “while it may go without saying, there is ample evidence that Covid-19 is an extremely infectious disease and that, without adequate mitigation, uncontrollable spread could severely impact the Douglas County community.”

“The court will not second-guess the broad latitude provided to scientific and medical experts in their attempts to protect the public from a known health emergency,” Huff added in her decision.

In a statement to the Journal-World Wednesday, George Diepenbrock, spokesperson for Lawrence-Douglas County Public Health, wrote that the health department is grateful for the judge’s denial of the temporary injunction.

“Our local public health order has now withstood legal challenges for temporary injunctions both in federal and state courts,” Diepenbrock said, referencing a similar case filed in federal court by the owner of the Sandbar. “As we have said, every action we have taken through the authority of the health officer during this pandemic has been to protect the health of this community, and this work will continue until COVID-19 is no longer a broad threat to Douglas County residents.”

In the Sandbar case, the federal judge did not consider the public health issues, but rather ruled on the legal issue of a liquor license being a privilege, not a right.

Related coverage

• Dec. 8, 2020: Lawrence adult entertainment club says Supreme Court decision on religious services should apply to local health order

• Nov. 20, 2020: All Douglas County restaurants, bars must close at 10 p.m.; mass gatherings limited to 10 people

• Nov. 19, 2020: Federal judge denies Sandbar’s request for injunction against health order limiting bars’ hours

• Nov. 12, 2020: As COVID-19 cases spike, Douglas County reduces mass gathering limit from 45 to 15

• Nov. 12, 2020: Judge weighs injunction in Sandbar case against Douglas County health order that restricts bars’ hours

• Oct. 28, 2020: Attorneys submit final arguments to judge, await ruling on Douglas County health order limiting bars’ hours

• Oct. 16, 2020: Attorneys argue in Paradise Saloon case challenging Douglas County health order; ruling still to come

• Oct. 15, 2020: Douglas County stands behind health order that’s facing legal challenges

• Oct. 12, 2020: Longtime downtown Lawrence bar owner wants Douglas County health order ruled unenforceable, lawsuit states

• Oct. 6, 2020: Lawrence club owner files legal action challenging Douglas County health order limiting hours

• Oct. 1, 2020: Restaurants, bars may now serve alcohol until 11 and close at midnight, per health order change

• Sept. 3, 2020: New public health order requires establishments to stop serving alcohol at 9 p.m.

• Aug. 21, 2020: Are bars open legally in Douglas County? Health department is still determining the specifics

• April 23, 2020: Lawrence-Douglas County health officials have dealt with dozens of businesses out of compliance with governor’s orders

• April 6, 2020: Stay-at-home order leaves a big question unanswered: Says who?

• March 18, 2020: Kansas Supreme Court: State courts to conduct emergency operations only; cases won’t be dismissed